11th Circuit ruling sided with Ala. Corrections Department

Doug Dark Horns Bailey held the silver-and-brown strands of his hair, gathered in two tails running down his back. This, he said, was sacred.

“Long before science ever heard of DNA, our ancestors knew our essence was contained in our hair,” said Bailey, an artist and Creek Indian who lives in Wetumpka. “Long, long before they ever started using DNA, we believed our essence was in our hair. That’s why we don’t cut it.”

While serving an 18-year sentence for robbery in the Alabama prison system, Bailey reconnected with his faith, and said it was key to helping him reform his ways and stay out of legal trouble.

“I just felt reconnected again,” he said. “I felt like myself again. I felt like a real individual, and not some lost, castaway soul.”

Bailey, released in 2004, is a plaintiff in a long-running suit brought by Native-American inmates against the Alabama Department of Corrections over religious rights. The suit, which dates back to 1993, has opened the door for some practices for inmates. However, DOC policies require all male inmates to keep hair cut short, and that remains a point of contention.

Last month, a three-judge 11th Circuit Court of Appeals panel ruled in favor of the department’s ban, saying that federal law allowed DOC to make a “reasoned assessment” of its safety policies. The DOC has argued that long hair constitutes a safety issue within the prisons and could make it easier for escaped inmates to change their appearance and avoid recapture.

The plaintiffs are seeking a rehearing by the 11th Circuit, arguing hair length is a foundational part of Native-American religious practice, and that the panel’s decision contradicts the circuits’ own rulings and decisions by other circuits. The request has the support of a diverse number of groups, including the National Congress of American Indians and the Ethics and Religious Liberty Commission of the Southern Baptist Convention.

“The Alabama Department of Corrections has totally banned a core religious tenet of Native-American religious practice, which is wearing unshorn hair,” said Mark Sabel, a Montgomery attorney who is representing the plaintiffs. “The 38 state prisons systems plus the Federal Bureau of Prisons, which has prisons all across the continent, and DC prisons all permit inmates to wear long hair.”

In a statement, DOC spokesman Brian Corbett said the department’s policies were “completely vindicated” by the ruling.

“The federal judge agreed that security concerns of the ADOC are justified, and the appeals court affirmed that conclusion: ‘Allowing male inmates to wear long hair carries with it established costs and risks,’ ” the statement said. “The department is confident that the District Court’s ruling and the Eleventh Circuit’s affirmation will withstand any further legal challenges.”

The Montgomery-based Southern Poverty Law Center has signed onto the National Congress of American Indians’ brief. Richard Cohen, president of the SPLC, said the case could go to the U.S. Supreme Court.

“In this particular case, about 80 percent of states in nation can accommodate Native-American prisoners and their practices,” he said. “Alabama, unfortunately does not.”

According to DOC testimony, there were 195 practitioners of Native-American religions in Alabama prisons in January 2009. It was not clear how many inmates are currently practicing.

The suit has resulted in gains for those practicing Native-American religions. Walking through his home, perched on a hill just off Alabama 21, Bailey shows many religious items he fashioned while in prison, including a hawk wing and a talking stick.

In many cases, Bailey said, some items had to be returned or obtained by court order; at one point, Bailey and Sabel said, DOC had a limit on the number of feathers an inmate could have.

“It was an arbitrary limit,” Bailey said. “There was no particular reason for it.”

Bailey and other plaintiffs in the case have testified that DOC policies limiting hair length inhibited their religious practice.

Bailey said in his practices, hair only would be cut during times of war or mourning. When he was forced to submit to a haircut in prison, he said, “I felt like most of me was laying there, on that floor. I couldn’t put a finger on it. I couldn’t tell what it was, but it felt like an absence of a part that was something essential.”

Thomas Otter Adams, a member of the Cherokee tribe, said in a court statement that long hair was a critical part of his religion, and that there would be “great consequences, eternal consequences” for dying with short hair.

“All our ceremonies are connected,” he testified in court. “If there is part of that missing, then when (we) meet the Creator, we stand before him with shame on our face. I don’t want to meet my Creator with that shame on my face.”

The DOC, however, argued that long hair creates safety hazards. Inmates could pull hair during confrontations, officials said, or use long hair to smuggle contraband into prisons. Officials also said escaped inmates with long hair could cut it while outside the prison, making recapture difficult.

The three-judge panel sided with the DOC in July, ruling that it had the right to regulate hair grooming, regardless of how other states chose to address the matter.

“That other jurisdictions choose to allow male inmates to wear long hair shows only that they have elected to absorb those risks,” the court wrote. “The (Religious Land Use and Institutionalized Persons Act) does not force institutions to follow the practices of their less risk-averse neighbors, so long as they can prove that they have employed the least restrictive means of furthering the compelling interests that they have chosen to address.”

The court also cited testimony from Ronald Angelone, the former head of Virginia’s prison system, who said long hair made it easy for an escaped inmate to avoid recapture.

“The inmate was discovered three or four days after his escape, but the haircut had so significantly changed his appearance that Angelone would not have been able to identify him from the photograph that the prison released to local police departments,” the opinion said.

The plaintiffs argued in a brief filed Aug. 16 that the court’s decision failed a “strict scrutiny” standard and failed to consider what it called the less-restrictive practices of other states. As of Friday, a ruling had not been made on the plaintiffs’ request.

Since his release, Bailey has continued to practice and has constructed a circle outside his home. He credits the faith with filling a personal void and keeping him out of prison.

“I wish the courts could see or feel how something as simple as a lock of hair can mean,” he said.

3 Comments

that we have a terrible ssteym of justice, except when you compare it to every other one in civilized history. This is why I don’t believe in the death penalty. Too many people taken off the streets by overzealous authorities who for one reason or another want to get a case solved. In 1989 I was a juror on a murder one trial where this happened. It is a long and sad story, one of the most difficult weeks of my life. For me it was only week for the convicted man a lifetime without possibility of parole.

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